Journalist Privilege and Law Enforcement Leaks

In a very interesting case, U.S. District Court Judge Rosemary Collyer recently held a Washington Post reporter in contempt of court for not revealing the source of a leak in the investigation of Wen Ho Lee. [Click here for the court’s opinion.] The case involves a civil suit by Lee against a number of federal agencies for violating the Privacy Act of 1974, 5 U.S.C. § 552a. Lee was a scientist employed by the Department of Energy and was being investigated by the FBI for espionage for China. Ultimately, the espionage case collapsed and Lee pled guilty to one count of mishandling computer files.

During the investigation, Washington Post journalist Walter Pincus published a few articles about the Lee investigation, identifying him by name and discussing extensive details of the investigation, including “his and his wife’s employment histories, their financial transactions, details about their trips to Hong Kong and China, details concerning the Government investigation and interrogation, and purported results from polygraph tests.” Pincus indicated that anonymous government sources supplied him with the information.

Lee has sued the government for violating the Privacy Act, which prohibits government agencies (including the FBI) from disclosing records about an individual. Lee sought from Pincus who his sources were. Pincus raised the journalist privilege, claiming he should be sheilded from being forced to disclose.

In Branzburg v. Hayes, 408 U.S. 665 (1972), the Supreme Court held that the First Amendment did not “grant newsmen a testimonial privilege that other citizens do not enjoy.” Lower courts, however, nevertheless adopted a qualified journalist privilege. In the D.C. Circuit, where the Lee case is being litigated, the privilege applies except if (1) the reporter’s information is central to the plaintiff’s case; and (2) the plaintiff has exercised all reasonable alternatives to obtain the information elsewhere. The court in the Lee case found that both these elements were satisfied, and that therefore, Pincus did not have the privilege and had to disclose.

I blogged about this issue with regard to the Judith Miller and Valerie Plame case at Balkinization, and I’ve reproduced the post here. Basically, I argued that there should be a journalist privilege and it should apply whenever the leak is in the public interest. I used this test to separate cases of government whistleblowing (such as the Pentagon Papers), where the leaks serve the greater public interest, and cases like the leak of Plame being a CIA agent, which do not serve the public interest.

The public interest test would alter the analysis in the Lee case. The court’s test in the Lee case turns on the plaintiff’s need for the information; the public interest test looks at society’s interest in protecting journalists and promoting or discouraging certain kinds of leaks.

Of course, the criticism of a public interest for the privilege is that it leaves a lot to the discretion of the court. However, an absolute rule one way or the other (an absolute privilege or no privilege at all) would run into several problems. One could deny the journalist privilege entirely, but that could make it hard for people to whistleblow on government corruption to the media without being identified. And it places journalists in a very difficult position and could chill the reporting of important news stories.

On the other hand, an absolute privilege also runs into problems. First of all, who is a journalist? Should journalists only be individuals associated with a mainstream media publication? Why can’t bloggers be journalists? Why can’t anybody who writes for a public audience? I believe that there is no reasonable basis to distinguish mainstream media journalists from bloggers for the purpose of privilege. But this, however, creates a problem — the privilege might grow too large and might cover too many people, thus preventing a lot of important evidence gathering in both civil and criminal cases.

Second, there are instances where we want to ferret out and stop leaks. The Valerie Plame leak was a criminal act done in petty vindictiveness. Do we really want to create a rule that protects government officials who wrongfully leak to the media from being brought to justice?

In my post about the Plame case, I applied my public interest test to conclude that the Plame leak should not be protected by the privilege since the leak wasn’t in the public interest.

If we were to adopt my public interest test, however, the Wen Ho Lee case remains very difficult. As the court in the Wen Ho Lee case stated:

To accept Mr. Pincus’s argument that he is protected by privilege from revealing whether Government officials illegally leaked information about Dr. Lee would undermine the fundamental purpose of the Privacy Act. Congress has provided a private right of action for individuals who are harmed by a Government agency’s improper disclosure of confidential records. Accordingly, the law expressly discourages the kind of leaks that are at issue in this action.

Government investigations frequently have leaks, and these leaks can be extremely harmful to the subject of an investigation, who is not formally accused of any crime. The result of leaks is that subjects of investigations get tried in the media and often harassed — long before investigators can determine whether there’s really any case against them. Leaks such as this should be stamped out, but they can’t be unless there’s a way to investigate them.

Leaks in the course of government investigations that violate the Privacy Act are not in the public interest, and would not justify the privilege. I come to this conclusion reluctantly, however, as there are no easy answers to the issue of when journalist privilege should apply.